Exhibit 10.1
CONSENT
Reference is hereby made to that certain Securities Purchase Agreement,
dated as of February 18, 2005, by and among Xxxxx 0 Xxxxxxxxxxxxxx, Xxx., a
Delaware corporation (the "Company"), and the Investors named on Exhibit A
thereto (the "Purchase Agreement"). Capitalized terms used in this Consent
without further definition have the meaning ascribed to those terms in the
Purchase Agreement.
RECITALS
WHEREAS, during the Standstill Period, Southeastern has agreed in the
Purchase Agreement not to, without the prior written consent of the majority of
the entire Board of Directors (excluding any representatives or designees of the
Investors), engage in certain actions with respect to the Company;
WHEREAS, pursuant to Section 5.6(a)(i)(B) of the Purchase Agreement,
during the Standstill Period, Southeastern has agreed not to, without the prior
written consent of the majority of the entire Board of Directors (excluding any
representatives or designees of the Investors), alone or in concert with others,
acquire any Common Stock, Voting Securities or Derivative Securities of the
Company except pursuant to the conversion of convertible debt of the Company
held by Southeastern;
WHEREAS, Southeastern has requested that the Company consent to
permitting Southeastern, on behalf of its institutional advisory clients, to
purchase, from time to time, additional shares of Common Stock in one or more
transactions that do not involve the issuance of additional shares of Common
Stock by the Company; and
WHEREAS, the Company is willing to consent to Southeastern purchasing,
from time to time, additional shares of Common Stock in one or more transactions
that do not involve the issuance of additional shares of Common Stock by the
Company in accordance with the terms of this Consent.
NOW THEREFORE, in consideration of the representations, warranties and
covenants contained in that certain Certificate of Southeastern attached hereto
as Exhibit A (the "Certificate"), the Company hereby consents as follows:
1. Holdings of Southeastern. In the Certificate, Southeastern has
represented and warranted to the Company that as of the date thereof
Southeastern Beneficially Owned (for purposes of the Purchase Agreement)
approximately 20.85% of the Common Stock, such percentage including certain
shares of Common Stock that Southeastern has represented it is not currently
deemed to beneficially own under Securities Exchange Commission Rule 13d-3
promulgated under the Securities Exchange Act of 1934.
2. Consent. Pursuant to Section 5.6(a) of the Purchase Agreement and
notwithstanding the last sentence of Section 5.6(b) of the Purchase Agreement,
the Company hereby consents to permitting Southeastern to purchase, from time to
time, on behalf of its institutional advisory clients, additional shares of
Common Stock in one or more transactions; provided, however, that Southeastern
shall not purchase (or agree to purchase) any Common
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Stock (a) other than in transactions that do not involve the issuance of Common
Stock by the Company, (b) unless after giving effect to such purchase
Southeastern would Beneficially Own (for purposes of the Purchase Agreement)
less than 381,869,219 shares of Common Stock (subject to adjustment on account
of stock splits, combinations, subdivisions and reclassifications) and unless
such purchase comply with the provisions of Section 5.6 of the Purchase
Agreement other than Section 5.6(a)(i)(B) thereof, or (c) for its own account or
on behalf of any Southeastern investment advisory client if it or such
investment advisory client is on the date of such purchase, has been at any time
within the three year period ending on the date of purchase or would become, as
a result of such purchase, a "5-percent shareholder" of the Company within the
meaning of Section 382 of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder (including all applicable attribution rules).
3. No Other Effects. Except as otherwise set forth in this Consent, the
terms of the Purchase Agreement remain unchanged and in full force and effect
without any amendment, modification or alteration.
4. Authorization. The Company hereby represents and warrants to
Southeastern that pursuant to the requirements of Section 5.6(a) of the Purchase
Agreement, a majority of the entire Board of Directors (excluding any
representatives or designees of the Investors) has consented to the execution
and delivery of this Consent.
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IN WITNESS WHEREOF, the undersigned has executed this Consent as of
this 2nd day of May, 2007.
XXXXX 0 COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
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Exhibit A
CERTIFICATE
May 2, 2007
Reference is hereby made to that certain Securities Purchase Agreement,
dated as of February 18, 2005, by and among Xxxxx 0 Xxxxxxxxxxxxxx, Xxx., a
Delaware corporation (the "Company"), and the Investors named on Exhibit A
thereto (the "Purchase Agreement"). Capitalized terms used herein without
further definition have the meaning ascribed to those terms in the Purchase
Agreement.
In order to induce the Company to grant the consent, dated the date
hereof, to which this Certificate is an exhibit (the "Consent"), the undersigned
hereby certifies to, and agrees with, the Company that:
1. As of the date hereof, Southeastern Beneficially Owns
approximately 20.85% of the Common Stock, such percentage including certain
shares of Common Stock that Southeastern is not currently deemed to beneficially
own under Securities Exchange Commission Rule 13d-3 under the Securities
Exchange Act of 1934.
2. Southeastern has not formed a Group with any other Person
or Persons and is not a member of a Group. Southeastern shall not take any
actions such that it and any other Person or Persons may be deemed to be a
Group.
3. During the Standstill Period, Southeastern shall not
purchase (or agree to purchase) any Common Stock (a) other than in transactions
that do not involve the issuance of Common Stock by the Company, (b) unless
after giving effect to such purchase Southeastern would Beneficially Own less
than 381,869,219 shares of Common Stock (subject to adjustment on account of
stock splits, combinations, subdivisions and reclassifications) and unless such
purchase comply with the provisions of Section 5.6 of the Purchase Agreement
other than Section 5.6(a)(i)(B) thereof or (c) for its own account or on behalf
of any Southeastern investment advisory client if it or such investment advisory
client is on the date of such purchase, has been at any time within the three
year period ending on the date of such purchase or would become, as a result of
such purchase, a "5-percent shareholder" of the Company within the meaning of
Section 382 of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder (including all applicable attribution rules).
4. The decision to acquire shares of Common Stock for any one
investment advisory client of Southeastern or for Southeastern's own account has
not been, and will not be based, in whole or in part, on the fact that shares
are acquired by any other investment advisory client or any other person.
5. Except as otherwise set forth in the Consent, the terms of
the Purchase Agreement remain unchanged and in full force and effect without any
amendment, modification or alteration.
SOUTHEASTERN ASSET MANAGEMENT, INC.
By: /s/ Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: VP & Assistant General Counsel
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